Gunter v. State
| Decision Date | 31 May 1979 |
| Docket Number | Nos. 34611,34612,s. 34611 |
| Citation | 243 Ga. 651,256 S.E.2d 341 |
| Parties | GUNTER v. The STATE (two cases). |
| Court | Georgia Supreme Court |
Fortson, Bentley & Griffin, Herbert T. Hutto, Athens, for appellant (Case No. 34611).
Alan M. Alexander, Jr., Athens, for appellant (Case No. 34612).
Nat Hancock, Dist. Atty., Richard J. Burkett, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Susan V. Boleyn, Asst. Atty. Gen., for appellee.
The appellants, Tommy and Gail Gunter, who are husband and wife, were convicted in the Barrow Superior Court of the murder of Betty Parsons, who was Tommy Gunter's ex-wife. The appellants received sentences of life imprisonment. This is the appeal from their convictions.
The evidence presented at trial showed the following:
Tommy Gunter and Betty Parsons, formerly Betty Gunter, were divorced in 1973. Betty obtained custody of their minor child, Shane Gunter, and Tommy was ordered to pay child support. Betty later married Gary Parsons. Tommy married Gail Gunter. Tommy and Gail Gunter were extremely rankled by the fact that Tommy had to continue paying child support to Betty after she had married Gary Parsons. In June of 1977, Tommy was held in contempt of court for failure to make child support payments.
Gary Parsons testified that in July of 1977, he had gone to Tommy Gunter's trailer to discuss his adoption of Shane Gunter. Parsons testified that Tommy Gunter had told him "that he couldn't afford to pay 'em any more, that he wasn't going to pay them any more . . . and that he's gonna have to kill her (Betty Parsons) or something or move out of state or something like that." Parsons further testified that on that occasion Gail had said to him that "her parents had enough money where they could have something like that done."
Several other witnesses testified as to statements made by Tommy Gunter in which he complained of having to pay child support to Betty and threatened to kill her if she persisted in her efforts to have him continue paying child support.
Danny Whitehead testified as follows: In or around June of 1977, he had sold two trucks to Tommy Gunter. Gunter told him that he was having problems with his ex-wife and that he would like to see her dead. This conversation took place at the Union Point Lumber Co., where Whitehead and Gunter had other business dealings. Whitehead was living with Jimmy O'Dillon at the time, and O'Dillon told him that he was a "hit-man." Whitehead agreed to arrange for O'Dillon to kill Gunter's ex-wife. Whitehead served as an intermediary between O'Dillon and Gunter, and eventually it was agreed that O'Dillon would kill Betty Parsons for $2,000. At O'Dillon's request, Whitehead wrote Tommy's 'phone number and Betty Parsons' name and address on a small piece of paper. (This paper was introduced in evidence as an exhibit.) During the first part of August, Whitehead went to Tommy Gunter's trailer to collect some money. Tommy was not there, but Gail had a conversation with Whitehead, and she told him that if "this man" did not kill Betty Parsons, she would kill "the bitch myself." Later, a meeting was arranged between Tommy Gunter, O'Dillon, and Whitehead at the Union Point Lumber Company. A few days before the killing occurred, Gail told Whitehead on the telephone that if "ya'll have it done by 12:00 o'clock on Friday night, I'll go to bed with you." She also agreed to go to bed with O'Dillon. In addition, she said that if Tommy could not get the money,
Walter Stone, who conducted business at the Union Point Lumber Company, testified that, during the summer of 1977, he saw Tommy Gunter, Danny Whitehead, and a third individual, whom he could not identify, together on the grounds of the lumber company. The description Stone gave of the unidentified third party fits the description of O'Dillon.
Wayne Self testified that, during the first week of August in 1977, O'Dillon and Whitehead had approached him "to have a set up, to kill a lady of this man that was supposed to go to court against her." Self further testified that O'Dillon had told him that the man "wanted the woman killed over a divorce or something like this and he needed to get this lady out of the way . . ." They wanted Self to obtain a high-powered rifle for them. Self refused, and he notified law enforcement officials of O'Dillon's and Whitehead's plans.
Whitehead and O'Dillon obtained a shotgun elsewhere. On the evening of August 12, 1977, they drove O'Dillon's truck to Betty Parsons' home in Winder, Georgia. Whitehead drove the truck into the driveway, blew the horn twice, and then backed the truck down the road. Meanwhile, O'Dillon got out of the truck. The door leading to the house from the carport was locked. O'Dillon kicked it down and entered the house. He proceeded to shoot Betty Parsons to death with the shotgun. Shane Gunter, Tommy's and Betty's son, was also present, but he was not harmed. Whitehead and O'Dillon returned to O'Dillon's trailer in Jackson County, and they were arrested by the police that evening.
Other evidence will be reviewed as is necessary for a consideration of the enumerations of error raised.
1. In the first enumeration of error, both of the appellants argue that the trial court erred in overruling their challenge to the array of the petit jury, which was brought on the ground that the petit jury panel for the week the appellants were tried (Monday, February 27, 1978 through Thursday, March 2, 1978) contained the names of jurors who had served on the jury panel during the previous week (beginning Monday, February 20, 1978). 1 The appellants argue that this was in violation of Code § 59-710, which provides: " When the superior court is held for longer than one week, the presiding judge shall draw separate panels of petit jurors for each week of the court."
As authority for their position, the appellants cited before the trial court, and they cite on appeal, the case of Bridges v. State, 103 Ga. 21(2), 29 S.E. 859 (1897). See also Cochran v. State, 62 Ga. 731 (1879). Cf. Cochran v. State, 113 Ga. 736, 39 S.E. 337 (1901). The appellants' reliance on Bridges is misplaced. In that case, the jurors held over from the first week were used as tales jurors in addition to the regular jurors called for the second week. Since they were not properly summoned as jurors (see Code Ann. § 59-711), they could not so serve.
In our opinion, the case is controlled by Code Ann. § 24-3009, which provides, in pertinent part, that: "The judges of the superior courts may, in their discretion, hold adjourned terms of said courts in any court within their respective circuits, when the business requires it to close the dockets, and may, in the exercise of a sound discretion, cause new juries to be drawn for the same, or Order the juries drawn for the regular term to give their attendance upon such adjourned terms . . ." (Emphasis supplied.) Under this section, the trial judge may adjourn court and hold the jurors over to the adjourned session. Harris v. State, 191 Ga. 243, 12 S.E.2d 64 (1940); Buchanan v. State, 118 Ga. 751, 45 S.E. 607 (1903); Cribb v. State, 118 Ga. 316, 45 S.E. 396 (1903); Brinkley v. State, 54 Ga. 371 (1875). Since it is presumed that the trial court proceeded legally (Hudgins v. State, 61 Ga. 182 (1878)), it is incumbent on the defendant to show that the trial court was not meeting pursuant to adjournment. They have not done so here. Accordingly, we find this enumeration of error to be without merit.
2. In the second enumeration of error, both of the appellants argue that the trial court erred in overruling their motions for directed verdicts of acquittal, on the ground that the testimony of accomplice Whitehead was not corroborated, as required by Code § 38-121.
As we have recently stated in Reaves v. State, 242 Ga. 542, 250 S.E.2d 376 (1978):
As held by the Court of Appeals: Haire v. State, 89 Ga.App. 629(1), 80 S.E.2d 497 (1954). Accord, Nooner v. State, 131 Ga.App. 563, 566, 206 S.E.2d 660 (1974).
Thus, the evidence corroborating the accomplice's testimony does not have to be...
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